1. The accused being on trial for murder, and relying upon the defence that he shot the deceased under the fears of a reasonable man that the deceased and his brother were about to kill him or do him some serious bodily injury, his counsel requested the court to charge as follows: “If, after considering all the evidence in the case, you have reasonable doubt as to the existence of such purpose on the part of the deceased and his brother, or on the part of either of them, then and there to kill McDuffie, or to do him some serious bodily injury; or if you have a reasonable doubt as to whether McDuffie then and there believed in the existence of such purpose on the part of his assailant or assailants, and that he had reasonable ground for such belief, it will be your duty to give him the benefit of such doubt.” Error is assigned upon the refusal of the court tp give this request in charge to the jury. Counsel for the plaintiff in error relied upon the ruling in Mitchell v. State, 71 Ga. 128. In that case the court was requested to charge, in effect, that if the jury had a reasonable doubt as to whether the circumstances undef which the
In the present case the charge requested was, substantially, that if the jury were unable to determine beyond a reasonable doubt, from the actions of the deceased and his brother at the time of the killing, whether it was the pui’pose and intention of either to kill or injure the accused, and that the accused was justified in believing from their conduct that such was their purpose, he should be given the benefit of such doubt. Even if following the ruling in Mitchell’s case supra, which certainly went a great length, the court could properly have given this instruction to the jury, we do not think he was bound to do so. The charge, as a whole, was full, fair, clear and accurate, and, as will presently appear, sufficiently covered the law of reasonable fears and reasonable doubt. The following extracts from it show that the question as to what should be the verdict of the jury in the event they should be unable to determine what was the purpose and intention actuating the deceased and his brother, was not left open ; but the court expressly instructed them, in effect, that though they should find that neither the deceased nor his brother had any intention of injuring the accused, still, if the accused was justified in believing that such intention existed, he could not be convicted. The court charged: “ There needn’t have been actual danger
Whether the deceased or his brother really intended to inflict injury upon the accused, was an inference to be drawn by the jury from the conduct of the parties at the time of the killing. It stood as did any other conclusion of fact to be gathered from and considered as established by the evidence submitted. As ruled in Vann v. The State, 83 Ga. 44, the court having fully and fairly charged the doctrine of reasonable doubt, it
2. It was complained in the motion for a new trial that N. S. Knight, one of the jurors who tried the case, was not impartial. In support of this ground, it was shown by the affidavit of one P. Williams that about a year before the trial he and others, including Knight, were talking about the killing of Prank Kirkland, when Knight said that McDuffie ought to have his neck broken, and spoke about the matter in a very positive and angry manner. In response to this, Knight made affidavit that he did not make the statements contained in the affidavit of P. Williams; but that in reply to some question or remarks on .the subject, and basing his opinion upon the rumors afloat in the country, he might have said that McDuffie ought to be hung, or would be hung; he, however, has no recollection of making any such remarks; if he did, it was merely the expression of an immature opinion shortly after the homicide, from mere rumors; that he had no well grounded, fixed or mature opinion as to the guilt or innocence of McDuffie, and his feelings toward McDuffie were and have remained entirely friendly; that when he was sworn at the trial as to his competency, he answered the questions propounded to him truly and exactly; that if the evidence had not shown the defendant guilty under the law, he could and would have returned a verdict of acquittal, and that he was governed solely by the evidence and the law. The trial judge was satisfied with this affidavit, and under the ruling in Hill v. State, decided at the present term (91 G-a.), there was no error in refusing to set the verdict aside on the ground that this juror was not fair and impartial.
4. It is well settled law in this State that threats made by the deceased against the accused, and communicated to the latter before the homicide, will not j ustify the killing unless, at the time of the killing, the deceased was making some effort to kill or seriously injure the slayer. This principle 'the court correctly and clearly gave in charge to the jury. It was insisted in the argument here that the court erred in not qualifying this statement oflaw by instructing the jury that while mere threats would not justify the killing, they should bfe given due weight in determining whether the accused acted under the fears of a reasonable man. We think this qualification was entirely unnecessary, it appearing that the judge in a previous portion of his charge, while instructing the jury upon the law of reasonable' fears, ■expressly stated that the threats which had been proved to have been made by the deceased might be considered as illustrating his conduct at the time of the killing. He charged: “ Therefore, gentlemen, you will see the importance of looking to the time of the commission of the offence,-and viewing it in the light of all the circumstances which throw light upon it. We gather human intention from the manifestation of circumstances surrounding the parties at the time the act is committed. Threats of bodily harm may be considered by the jury
5. The principle announced in the 5th head-note is fully sustained by the ruling in Gann v. State, 80 Ga. 67, the leading case in this State upon the law governing mutual combat, and one which has been followed in the subsequent decisions of this court upon the subject.'
6. Under the evidence contained in the record, the accused was sufficiently fortunate in escaping with a verdict of voluntary manslaughter. We are not prepared to say that the verdict should have been set aside had the jury found him guilty of murder, and we therefore decline to interfere with the judgment overruling his motion for a new trial. Judgment affirmed.